The application
9.The application was made jointly by all five appellants. Each of them signed the statement of truth which is included in the FTT’s standard form of application confirming that they believed that the facts stated in the application were true. 10.The application stated that the house satisfied the standard test of an HMO in section 254, Housing Act 2004 in that: it consisted of one unit of living accommodation occupied by persons forming five separate households; none of the occupants lived elsewhere and in each case the house was their main residence; none of them used the house for any purpose other than for living accommodation; they each paid rent and shared the amenities of the house. It was also said that the house met the criteria for licensing under the Licensing of Houses in Multiple Occupation (Prescribes Descriptions) (England) Order 2006 and 2018 in that it was a three-storey property let out to five unrelated persons. The application also stated that the property should have been licensed but had not been, and that none of the appellants had received housing benefit or universal credit rent contributions for the property. 11.The application asked for repayment of the rent paid in the year ending 19 August 2019 totalling £39,580; that sum was described as having been “paid for by Samantha Cobb on behalf of all of the applicants”. It was also said that the total rent being claimed “is split among the applicants… as £7,916 each”. Mr Jahanghir was identified as the landlord named in the appellants’ tenancy agreement and as the owner of the freehold interest in the property registered at the Land Registry. 12.When they field the application the appellants also supplied a copy of their most recent tenancy agreement, and a spreadsheet showing the monthly rental payments said to have been made by Ms Cobb on their behalf. 13.The FTT gave directions in the application on 29 September 2020. It required the appellants to provide a bundle of relevant documents for use in the application which was to include the application itself and the accompanying documents, “any expanded statement of the reasons for the application”, evidence of rent payments, and “the name(s) of any witnesses who will give evidence at any hearing with a signed and dated statement/summary of their evidence stating that it is true.” The direction then referred to notes which warned that “the tribunal may decline to hear evidence from any witness who has not provided a statement in accordance with the above directions.”14.The FTT’s directions also provided for the respondent to file a statement of his reasons for opposing the application, together with supporting evidence. The appellants were allowed a brief written reply.15.In compliance with the FTT’s directions the appellants filed a further document of five pages providing “full details of the alleged offence” and an “expanded statement of the reasons for the application.” The expanded statement repeated the basic facts demonstrating that the house was an HMO. Reference was made to bank statements providing proof of the rent paid by Ms Cobb on behalf of all of the appellants. The total amount claimed was again said to be £39,580, with each applicant applying for repayment of £7,916. The statement continued with further generic commentary on the private rented housing sector. It was again accompanied by statements of truth signed by each of the appellants.16.The application did not refer to the fact that Mr Herring and Ms Cooke had sub-let their rooms for part of the period in respect of which the rent repayment order was sought. The bank statements which accompanied the application showed 12 payments of rent had been made to the agent during the year in question. The statements also showed some payments by each of the appellants into Ms Cobb’s bank account but they were not a complete set for the year and included only those individual pages showing the monthly instalments of rent paid to the agent. It was impossible to tell from the statements how much each of the appellants had paid to Ms Cobb during the year, but it was possible to see that at least one person who was not one of the appellants had paid rent to Ms Cobb during that period; for example, a payment of £660 described as rent was recorded on the bank statement as having been received into the account from Lauren Howard on 20 August 2018.17.The appellants did not provide any further witness statement. 18.Mr Jahanghir filed a statement of case and a witness statement on 29 November 2020. He accepted in his statement of case that the house was an HMO in the period to which the application related. He also accepted that it had not been licensed and that no application for a licence had been submitted. He explained that he had left the letting of the property to the letting agency which had been “responsible for any legal and/or compliance requirements.” Mr Jahanghir did not mention that the tenancy had begun in 2017 and gave the impression that the house had first been let in August 2018. He acknowledged that £39,580 had been paid to the agent by Ms Cobb but pointed out that the incomplete bank statements relied on by the appellants showed only that a little over £11,700 had been paid by them to Ms Cobb. He was concerned “that many people, other than the registered tenants, had been living at the premises and playing rent to Ms Cobb”. Ms Howard’s name appeared on one of the bank statements as having paid rent to Ms Cobb and letters addressed to eight other individuals were said to have been received at the property since the tenancy had come to an end.19.Although he accepted that the house was an HMO, Mr Jahanghir nevertheless required the appellants to prove that he was the “person having control” or “person managing” the house for the purpose of section 263 of the 2004 Act. If the FTT was satisfied that that condition was met so that an offence had been committed, Mr Jahanghir said that he relied on the statutory defence in section 72(5) of the 2004 Act, namely that he had had a reasonable excuse for having control of or managing an HMO without a licence. That excuse was that he had left everything to the managing agent to arrange. If the FTT rejected that defence Mr Jahanghir accepted “that the FTT may make a finding that it has been proved beyond reasonable doubt that the respondent has committed an offence and that, as a result, a rent repayment order should be made”.20.The appellants filed a response to the material supplied by Mr Jahanghir. They noted that Mr Jahanghir had accepted that, as they put it, “the breach occurred”. They also took issue with Mr Jahanghir’s chronology and various points of detail but did not respond to the suggestion that people other than the five appellants had been living at the property.